Unreal Distinctions: The Exclusion of Unfairly Obtained Evidence under S. 24(2) of the Charter

  • Steven M. Penney


This article begins with an examination of the historical treatment of illegally obtained evidence in common law jurisdictions outside of Canada. Pre- Charter Canadian law, as well as pre-Charter commentary and proposals for reform are also discussed. The article then examines post-Charter jurisprudence in Canada, exploring the problems and inconsistencies in the courts' interpretation of section 24(2). The author suggests that the distinction between real/self-incriminatory evidence as a basis for exclusion is philosophically and practically flawed, and should be abandoned in favour of an approach which considers the "discoverability" of the evidence in question.